PUBlisheR: Global sports policy review

ISSN(O): 2582-8886

Volume 2 | Issue 1 (AUTUMN 2021)

TABLE OF CONTENTS

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1. The European Super League: Examining the Validity of UEFA’s Bans from the Players’ Perspective

Author: Manthan Dalwai, Law Scholar, Jindal Global Law School

 

Abstract: On 18 April 2021, 12 of Europe’s biggest clubs announced the formation of a breakaway league, the European Super League (ESL). UEFA, in their attempt to halt the league, threatened to impose bans on the players of the 12 clubs. Chelsea and Manchester City pulling out set off a chain reaction which culminated with the ESL being shelved. The whirlwind 72 hours brought forth many points of deliberation, one of them being the rights of the players. One must wonder had the ESL not capitulated but “commenced as soon as practicable,” where it would have placed the players. This paper will look at the rights of the players by examining the validity of UEFA’s ban and asserting that the ban would amount to a repudiatory breach of employment contracts by the participating clubs. The first part of the paper will look at UEFA’s threats of an international ban on players. By analysing the tiers of regulations and the International Skating Union case it will argue that UEFA’s ban would constitute a restraint on freedom of trade. The paper will look to build on the Metropolitan Court of Madrid’s order which pointed out the fallacy in the proposed ban. The second part of the paper will analyse the contractual situation of the players from the perspective of employment contracts. It will assert that the conscious act by the clubs, which would obstruct players from participating in international competitions would constitute a repudiatory breach. The paper will then examine the possible recourses the players had in such a situation. The author will conclude that the proposed ban was arbitrary and illegal. The players would be fully within their rights to elect the acceptance of a repudiatory breach and be free to negotiate employment contracts with a new club.


Keywords: European Super League, Player Rights, Regulations, Ban, Repudiatory Breach

2. Analysing the Interpretation of the Right of Review in the 2021 Formula 1 Season

Author: Advait Raghunath, Law Scholar, Symbiosis Law School, Pune

Abstract: Formula 1’s viewership rise in the past couple of years has resulted in higher monetary stakes for each of the teams involved. High monetary stakes have translated to more intense competition. In furtherance of maximising opportunities and minimising threats, the right of review’s interpretation has become the subject of greater scrutiny. The right is taken up by a team that is aggrieved by a decision of the Fédération Internationale de l’Automobile’s stewards. Article 14 of the International Sporting Code provides for such right, however, it is very rarely granted owing to the stringent grounds that have to be met for its admission. This article will seek to explore the stewards’ interpretation of Article 14 in the context of two contentious decisions that were made in the 2021 Formula 1 season. The decisions went against two greats of the sport, Sebastian Vettel and Lewis Hamilton, whose teams exercised the right of review being aggrieved by the stewards’ original decision.
 

Keywords: Right of Review, Formula 1, Article 14, International Sporting Code, Fédération Internationale de l’Automobile, Stewards

3. Anti-doping: An Ally for Clean Sport but An Adversary of Guileless Athletes

Author: Nayan Prakash, Law Scholar, Jindal Global Law School

Abstract: Anti-doping is the cornerstone of fair sport. It is imperative that anti-doping contributes positively to the lives of athletes and enables them to compete without worrying about recalcitrant factors such as cheating. However, when the anti-doping mechanism ends up becoming a menace to athlete welfare, there arises a need to cast a closer and detailed look at its practical operation in real life. The objective of this research paper is to examine anti-doping mechanisms and the problems associated with them. In furtherance of the same, the paper shall first delve into a brief account of the cultural and historical background of doping to understand that the reason athletes resort to doping in the first place is a complex culmination of social and psychological factors tied to the culture of the sport. The paper shall then address World Anti-Doping Agency (WADA), the global anti-doping regulatory body. Case studies of athlete suffering shall be focused upon to garner attention to the harsh sanctioning of inadvertent doping, which causes innocent athletes to lose their careers over a mistake that was not in their control. The paper shall then examine major problems with the anti-doping mechanism such as poorly timed out-of-competition testing, whereabouts reporting, constant surveillance, disregard of intention in doping regulations, limited role of athletes in anti-doping policy, and lack of procedural fairness. Finally, the paper shall propose solutions such as promoting athlete education, increasing athlete representation within NADOs, increasing transparency in testing systems, strengthening domestic dispute resolution mechanisms, etc.


Keywords: Anti-doping, Athlete Welfare, Inadvertent Doping, Harsh Sanctions, World Anti-Doping Agency(WADA)

4. Gender Bias in Access to Sports Facilities: Plugging the Legislative & Executive Loopholes in India

Author: Ifra Jan, Additional Spokesperson, J&K National Conference 

Omer Ghazi, Research Associate, Citizens' Foundation for Policy Solutions, New Delhi

Abstract: Keeping in mind the need for increased participation of women in sports, it is important to consider the possibility of more pragmatic legislative and/or executive intervention, including reforms in the current drafts of proposed sports legislations, which hardly touch on any gender issue other than sexual harassment, so as to weed out gender inequality in this domain and give suggestions and recommendations to ensure the implementation of Article 15 under the Indian constitution, as regards gender equality in access to public facilities, in the field of sport in letter and spirit.

Keywords/phrases: Gender equality, international human rights law, CEDAW, Article 15 of the Indian constitution, National Sports Development Code, 2011, National Sports Development Bill, 2013, National Sports Ethics Commission Bill, 2016.

5. The Need to Reset Morality Clauses in Athlete Contracts

Author: Rohit Krishna, Law Scholar, Jindal Global Law School

Abstract: The relationship between law and morality is an age-old one and off late it finds itself at the forefront through morality clauses in athlete’s sports and endorsement contracts. Due to the rapid growth of the athlete endorsement industry and sports bodies signing multi-million dollar player contracts, all parties are exposed to greater financial and image-related risks. It is in this context, where the athlete is the face of the organisation in the public’s eyes, morality clauses emerge. Morality clauses regulate the off-field behaviour of an athlete, prohibiting ‘unethical or immoral conduct’ which is unbecoming of the sport or against societal norms and this can lead to the termination of the contract. Statements made by athletes on their social media which are seen to be ‘politically incorrect’ or ‘immoral’ can cause the termination of a contract, affecting their careers and a company’s success rate, leading to severe monetary loss and reputation damage for both parties. Due to this, many companies have now started wording these morality clauses in very broad and vague terms, bringing in any action they deem “immoral’ into the domain of the morality clause, thereby cutting ties with the athlete. Through the use of secondary research like journals and articles, the author argues that these broad and ambiguously worded clauses are manifestly unfair to athletes and professional sporting bodies by exercising their powers through these vague clauses are transgressing their limits, encroaching upon an athlete’s basic fundamental rights. The paper shall start with a look at the history of moral clauses, delve into a few famous examples of such clauses being triggered and analyse the consequences of a vaguely worded morality clause. The paper shall conclude by recommending a number of practical solutions to narrow the scope of this clause so that every contract clearly specifies which actions bring ‘disrepute to the sport’, leading to termination of the contract, thereby giving more clarity and advancing the interests of athletes.

Keywords: Contract, Athletes, Morality Clauses, Immoral, Brand endorsements

6. Intellectual Property Rights with Special Reference to Sports: An Analysis

Author: Dr. Preetha U., Assistant Professor, Government Law College, Thrissur

Abstract: Sports law is a new discipline that has recently emerged owing to the commercialization of sports events all over the world. In the arena of sports, the law relating to intellectual property rights plays a crucial role in protecting the rights of every individual who bestowed his labour, time and skill in creating his work. The paper discusses various intellectual property rights protections available to persons where the new creations are related to sports. It extends from jerseys that the sportspersons are wearing to the goods that are used for playing the game. It also covers the area of broadcasting sports events on various audio and visual media platforms. There is a vacuum in the Indian legal system for addressing the issues in the sphere of sports activities. India lacks a specific comprehensive law relating to sports. The issues pertaining to intellectual property rights in the area of sports activities covers copyright, patent, trademark, design etc. The paper examines whether the existing legal framework is sufficient to tackle the issues of infringement of these intellectual property rights. The author also discusses the limitations of intellectual property protection in the sports regime. The paper concludes with certain suggestions and recommendations to address these concerns where the creators’ proprietary rights pertaining to the sports industry are misappropriated. 

Keywords: Sports law, Intellectual property rights, Copyright, Trademarks, Patent

7. Gender Equality Comparison in Martial Arts between Indonesia and the Middle East Countries

Author: Brilliant Windy Khairunnisa, International Relations graduate at UIN Sunan Ampel Surabaya, Surabaya, Indonesia

Abstract: Martial arts may be classified as an art and culture that blends spirituality with martial arts. However, the public's perception of the sport is dominated by the violent connotation. This causes a gender issue where women are often underestimated and are not allowed to participate in martial arts training. Every sport, especially Martial Arts, does not limit the existence and role of gender within its framework. Indonesia has Pencak Silat, as one of its distinct martial art cultures, while countries in the Middle East have their own martial arts in their country even though it is not a distinctive culture that it has. However, Indonesia and the Middle East countries have similarities in terms of religion, where there is one religion that dominates in the country and influences national policies and foreign policies. This article aims to discuss whether there is a comparison between Indonesia and countries in the Middle East in gender equality in martial arts which is dominated by violence and self-defence, and why this is possible. This study employs a qualitative comparative research technique. The comparison uses five Middle Eastern nations as an example and the notion of feminism in Islam as a reference.

Keywords: Comparison, Gender, Indonesia, Martial Arts, Middle East.

8. Are E-Sports sports? An Empirical Analysis vis-à-vis Developments so far

Author: Aayush Sharma, Law Scholar, Manipal University Jaipur

Abstract: Electronic Sports (most commonly known as E-Sports) has been continuously reaching bigger milestones in development during the past decade. Big Tech Giants have led to the development of a very advanced, user-friendly, high-graphics interface in the field of gaming. This has significantly led to the development of E-sports which makes Augmented Reality (AR) a possibility i.e., real-time interaction and accurate 3D representation of virtual and real objects. But where does this all leads a Common man too? Does there exist any developments socially? Does there exist any laws which govern the so-called E-Sports? Should these be called and seen as sports? In this research paper, the author seeks to contribute to existing practice and deeper understanding as to both the potential and limits of E-sports. The paper first examines the aspects as to how these sports developed at the first stage and how they are being regulated at present vis-à-vis the latest developments in the same. Furthermore, it discusses that where does E-sports specifically lack when the question is brought about the relationship between society and E-sports. Moreover, the author presents a balanced view on the stance of E-sports on Gender-related issues, how E-sports has made an outstanding market in the last decade, legal aspects of the same and most importantly over its nature of being addictive. The author grounds his analysis with concrete practices, drawn from significant research and experience, interviews with other scholars and advocates. The author concludes the same with recommendations that can further reform and regulate E-sports for it to be socially, economically and lawfully balanced.

Keywords: E-Sports, Augmented Reality, Legality of E-sports, Reforms, Addiction

9. Copyright Law & Sports: An Interconnection from Broadcasting Live Sporting Events to Signature Sports Moves

Author: Naman Khanna, Law Scholar, Symbiosis Law School, Pune

Abstract: The realm of sports is really no stranger to intellectual property law. The sporting world is no longer limited to a couple of passionate individuals on the field and has developed into a multibillion-dollar enterprise. Broadcasting sports coverage has now been transformed by breakthroughs in communications technology, allowing billions of people across the world to experience the spectacle and thrill of major sporting events. This paper analyses the interrelationship of broadcasting live sporting events and copyright law with the help of landmark cases. Amidst the coronavirus pandemic and the subsequent, the unauthorized sharing of copyrighted content of sporting events on social media has skyrocketed. This paper thus also looks at whether uploading sports clips on social media is considered copyright infringement or amounts to fair use under Indian copyright laws. Lastly, the paper analyses copyright in sports from an athlete’s perspective. The lack of any original or inventive form of expression due to sports' rule-bound nature, the lack of certainty of a match's or tournament's final outcome, and the lack of a pre-planned narrative are all frequently cited explanations that have led courts and broadcasters to believe that sports moves and performances are not copyrightable. This paper thus also discusses if an athlete can copyright his or her signature sports move and whether they can claim copyright in their sporting performances or not from an international perspective.

Keywords: Copyright, Broadcasting, Live events, Sports moves, Athletes,
Performance rights.

10. Institutional Sports Arbitration: International and Indian Perspective

Author: Harshit Bhimrajka, Law Scholar, Rajiv Gandhi National University of Law, Patiala

Pushpendra Sharma, Law Scholar, Rajiv Gandhi National University of Law, Patiala

Abstract: The sports industry has been always a major industry as it is not only about just games but also includes an interwoven relationship between parties like sports clubs, athletes, sports bodies, viewers, and the like. As this industry continues to grow, private and public sector investment has also been increased in the sports market. According to the Business Research Company, the global sports industry is valued at around $388 billion in 2020 and is expected to reach around $600 billion by 2025. Since the heavy investment in sports industries and the role of sponsorship deals, the sanctity of the sports industry has been tarnished as practices like corruption, labour abuse, bad politics, drug abuse, special treatment, nepotism, and many others have interjected with the industry. Thus, a need for a faster and efficacious dispute resolution mechanism arose which led to the growth of arbitration in the sports industry. In this paper, the authors aim to analyze sports arbitration with respect to national and international institutions and also identify the advantages of the same in regards to the Court of Arbitration for Sports.

Keywords: Arbitration, Sports Arbitration Tribunal, CAS, Indian Court of Arbitration for Sports 

11. Youngbloods of the Sport: Critical Analysis of Age Fraud in India

Author: Ahmar Afaq, Assistant Professor, Symbiosis Law School, Nagpur

Shantanu Seth, Law Scholar, Symbiosis Law School, Hyderabad

Abstract: Sport is an instrument that unites the people of a country. It does not discriminate between the people and bring the people of different backgrounds, caste, sex, religion etc. together. They also give the people a stage to showcase their skills and vigour to the people. However, an immense problem which the sport faces is that of age fraud where the age of an athlete is misrepresented generally in the age-restricted competitions in order to gain maximum benefit and advantage over others. The Board Cricket Council of India (BCCI) introduced a slew of substantial changes in order to curb the menace of age fraud in cricket. However, the changes have had a mixed response in the sporting world. This paper focuses on the problem of age fraud in India taking into consideration various sports such as Cricket, Football, Chess, Tennis and Athletics. Furthermore, the paper also focuses on the steps taken to ensure accuracy in age determination and will also look into the different legislations currently prevailing in the country. Additionally, the paper would also look into the various advancements made at the international level by various federations regarding this issue. Lastly, this paper through these matters of discussion would seek to evaluate the current situation and prevailing policies and also provide for suggestions to curb this dreadful menace of age fraud in the country.

 

Keywords: Age Fraud, Age determination, Sporting Ethics, Scholarship, Age Verification test.